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Targeting Blacks
Drug Law Enforcement and Race in the United States
Acknowledgments
I. Introduction
II. Recommendations
III. Background: The War on Drugs and the US Criminal Justice System
Fig.1: Drug Abuse Violation Arrests
IV. Race and the Incarceration of Drug Offenders
Drug Offenses and Black Incarceration
Table 1: Prison Admissions for Drug Offenses as a Percentage of All Admissions, by Race and Gender, 2003
Racial Composition of Drug Offender Admissions
Racial Disparities in Rates of Admission
Table 2: Number of Prison Admissions for Drug Offenses, by Race, 2003
Fig.2: Racial Composition of Prison Admissions for Drug Offenses, 2003
Table 3: Rates of Prison Admissions for Drug Offenses, by Gender and Race, 2003
Fig.3: Rates of Prison Admissions for Drug Offenses, by Race, 2003
Fig.4: Ratio of Black:White Rates of Prison Admissions for Drug Offenses, 2003
Table 4: Ranking of States by Ratio of Black:White Prison Admission Rates for Drug Offenses, 2003
Fig.5: Correlation of White and Black Rates of Prison Admissions for Drug Offenses, 2003
Race and Gender
Fig.6: Male Rates of Prison Admissions for Drug Offenses, by Race, 2003
Fig.7: Female Rates of Prison Admissions for Drug Offenses, by Race, 2003
Table 5: Ratio of Black:White Rates of Prison Admissions for Drug Offenses by Gender, 2003

VII. Racial Injustice and Human Rights
In the post-civil rights era in the US, deep racial inequities remain in the criminal justice system. We do not know whether or to what extent conscious racism-that is, overt hostility to blacks-affects the actions of individual police, prosecutors, judges, politicians, or other participants in drug law enforcement. What we can identify are institutional structures and practices that appear to be color-blind but have the effect of perpetuating advantages for whites and disadvantages for blacks. The "war on drugs" is a paradigmatic example. Laws that appear racially neutral are actually embedded in particular racial dynamics adverse to African Americans, and their enforcement perpetuates those dynamics. As Prof. David Cole has observed, inequalities in the criminal justice system "do not stem from explicit and intentional race or class discrimination, but they are problems of inequality nonetheless." The problem is not explicit and intentional considerations of race, but racial "disparities built into the very structure and doctrine of our criminal justice system…."[109]
Drug law enforcement has deepened the racial disadvantages confronted by low-income African Americans even as it perpetuates the erroneous belief that most drug offenders are black. Research shows that "at a time when civil rights and welfare policies aimed at improving opportunities and living standards for black Americans, drug and crime policies worsened them … [They] have operated in the same ways as slavery and 'Jim Crow' legalized discrimination did in earlier periods to de-stabilize black communities and disadvantage black Americans, especially black American men."[110] The Leadership Conference on Civil Rights concluded in a study of civil rights and the criminal justice system, "Our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased. The injustices of the criminal justice system threaten to render irrelevant fifty years of hard-fought civil rights progress."[111]
Although racist intent is not a prerequisite to the existence of racial inequities, US state and federal constitutional law requires a finding of such intent before courts will rule unconstitutionally discriminatory practices that disproportionately burden a racial group.[112] International human rights law, specifically the International Convention on the Elimination of All forms of Racial Discrimination (ICERD), a treaty to which the United States is a party, is better suited to redressing racial inequities rooted in structural racism.[113]
ICERD prohibits policies and practices that have the purpose or effect (emphasis added) of restricting rights on the basis of race.[114] It proscribes apparently race-neutral practices affecting fundamental rights-for example, the right to liberty-regardless of racist intent, if those practices create unwarranted racial disparities. The Convention requires remedial action whenever there is an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin.[115] As the Committee on the Elimination of Racial Discrimination recently concluded after reviewing the most recent periodic reports of the United States regarding its compliance with ICERD:
The Committee reiterates the concern expressed in paragraph 393 of its previous concluding observations of 2001 (A/56/18, paras. 380-407) that the definition of racial discrimination used in the federal and state legislation and in court practice is not always in line with that contained in article 1, paragraph 1, of the Convention, which requires States parties to prohibit and eliminate racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but in effect. In this regard, the Committee notes that indirect-or de facto-discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a particular racial, ethnic or national origin at a disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. (Article 1(1)).[116]
Under ICERD governments may not ignore the need to secure equal treatment of all racial and ethnic groups, but rather must act affirmatively to prevent or end policies with unjustified discriminatory impacts.[117] ICERD notes in particular the importance of eliminating racial discrimination in legal systems. Article 5(a) requires states party to "prohibit and eliminate racial discrimination … notably in the enjoyment of … the right to equal treatment before the tribunals and all other organs administering justice."[118] The Committee on the Elimination of Racial Discrimination has recommended that "[s]tates should ensure that the courts do not apply harsher punishments solely because of an accused person's membership of a specific racial or ethnic group."[119]
Although the Committee has not specifically addressed racial disparities in the enforcement of US drug laws, it has previously observed the particularly high rate of incarceration of African Americans and Hispanics, and recommended that the United States ensure that this disproportionately high incarceration rate was not a result of the "economically, socially and educationally disadvantaged position of these groups."[120] In 2008 the Committee reiterated "its concern with regard to the persistent racial disparities in the criminal justice system [of the United States] including the disproportionate number of persons belonging to racial, ethnic and national minorities in the prison population.…"[121] The Committee pointed out that stark racial disparities in the administration and functioning of the criminal justice system, particularly in the prison population, "may be regarded as factual indicators of racial discrimination…." It recommended that the United States "take all necessary steps to guarantee the right of everyone to equal treatment before tribunals and all other organs administering justice, including further studies to determine the nature and scope of the problem, and the implementation of national strategies or plans of action aimed at the elimination of structural racial discrimination."
The United States suggested in its most recent submission to the Committee that racial disparities in the criminal justice system generally reflect racial disparities in offending, but it noted that there are "some unexplained disparities particularly related to drug use and enforcement."[122] We disagree. We think the United States could have explained racial disparities in drug law enforcement if it had sought to do so. But explained or not, those disparities cannot be justified. There can be little doubt that under ICERD, the United States must move forcefully to eliminate them.